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HQ 563132




January 13, 2005

CLA-02 RR:CR:SM 563132 EAC

CATEGORY: CLASSIFICATION

Mr. Mark Connors
Compliance Specialist & Licensed Customs Broker Buckland Global Trade Services Inc.
Peace Bridge Plaza, Dock Area
Buffalo, NY 14213

RE: NAFTA Certificate of Origin; manufacturer’s affidavit; subheading 9801.00.10, HTSUS; 19 CFR 10.1; documentation required upon entry

Dear Mr. Connors:

This is in response to your letter, dated September 28, 2004, requesting a ruling concerning whether a signed U.S. North American Free Trade Agreement (“NAFTA”) Certificate of Origin, as opposed to a manufacturer’s affidavit, may be accepted for purposes of obtaining preferential treatment under subheading 9801.00.10, Harmonized Tariff Schedule of the United States (“HTSUS”).

FACTS:

You state that in certain cases your importer clients are unable to obtain the manufacturer’s affidavits utilized for purposes of receiving preferential treatment under subheading 9801.00.10, HTSUS. However, some of the importers are in possession of NAFTA Certificates of Origin which indicate that the United States is the country of origin of the imported merchandise. You contend that since the NAFTA Certificate of Origin is accepted for entry purposes into both Canada and Mexico, the certificate should also be accepted by U.S. Customs and Border Protection (“CBP”) for purposes of determining eligibility under subheading 9801.00.10, HTSUS.

ISSUE:

Whether a NAFTA Certificate of Origin, as opposed to a manufacturer’s affidavit, may be accepted as proof of origin for purposes of obtaining preferential treatment under subheading 9801.00.10, HTSUS.

LAW AND ANALYSIS:

Subheading 9801.00.10, HTSUS, provides for the duty-free entry of products of the United States that have been exported and returned without having been advanced in value or improved in condition by any process of manufacture or other means while abroad. The requirements for entry under subheading 9801.00.10, HTSUS, are set forth in section 10.1, Customs Regulations (19 CFR 10.1). Section 10.1(a) outlines the necessary documentation required for duty-free entry under subheading 9801.00.10, HTSUS. Section 10.1(a)(1) requires that the foreign shipper make a declaration that the articles claimed to be free of duty under subheading 9801.00.10, HTSUS, were exported from the United States and that they are returned without having been advanced in value or improved in condition while abroad. The declaration is to include the port from which the goods were exported and the approximate date. Section 10.1(a)(2) requires that “...the owner, importer, consignee, or agent having knowledge of the facts regarding the claim for free entry...” sign a declaration that the foreign shipper’s declaration is true, provide the name and location of the manufacturer of the articles, and indicate that the articles were not manufactured or produced under bond and exported with benefit of drawback.

Section 10.1(b) states that in addition to the documentation requirements of 19 CFR 10.1(a), in any case in which the value of the returned goods exceeds $2,000 and the articles are not clearly marked with the name and address of the U.S. manufacturer, the port director may require such other documentation or evidence as may be necessary to substantiate the claim for duty-free treatment. Such other documentation or evidence may include a statement from the U.S. manufacturer verifying that the articles were made in the U.S. or an export invoice, bill of lading, or airway bill evidencing the U.S. origin of the articles and/or the reason for the exportation of the articles.

Also relevant for our purposes is 19 CFR 10.1(d), which provides that if the port director is reasonably satisfied, because of the nature of the articles or production of other evidence, that the articles are imported in circumstances meeting the requirements of subheading 9801.00.10, HTSUS, he or she may waive the requirements for producing the documents specified in 19 CFR 10.1(a).

Under 19 CFR 181.11, a NAFTA Certificate of Origin shall be employed to certify that a good being exported either from the United States into Canada or Mexico or from Canada or Mexico into the United States qualifies as an originating good for purposes of preferential tariff treatment under the NAFTA. Pursuant to 19 CFR 181.22(b)(2), NAFTA certificates prepared in anticipation of an importation from Canada or Mexico into the United States shall be signed by the exporter or by the exporter’s authorized agent having knowledge of the relevant facts. See also, Headquarters Ruling Letter (“HRL”) 114404 dated March 16, 1999 (discussing the preparation of NAFTA Certificates of Origin).

In HRL 548234 dated January 15, 2003, CBP considered a protest in which an importer was denied preferential tariff treatment under subheading 9801.00.10, HTSUS, for two entries of steel and other related equipment. After entry of the goods under consideration in that case, CBP issued a Request for Information (CF 28) to the importer requesting: the submission of U.S. manufacturer’s affidavits for the articles subject to the protest; that the importer specify whether the articles were exported to Mexico with the benefit of drawback; and, a determination from the importer as to whether the goods were produced in a customs bonded warehouse or under a particular subheading and exported under any provision of law. The importer failed to submit manufacturer’s affidavits for certain goods (namely, a hypot tester, ultrasonic welder machine, and mold) covered by the first entry. Therefore, in the absence of evidence that established that these particular goods were products of the United States exported and returned without having been advanced in value or improved in condition while abroad, CBP ultimately held that they were not eligible for duty-free entry under subheading 9801.00.10, HTSUS. The importer did submit manufacturer’s affidavits for certain goods covered by the second entry, but the documentation provided did not contain all of the specific information requested by the port. However, CBP determined that if the port was reasonably satisfied that the circumstances and conditions of 19 CFR 10.1(d) were met, subheading 9801.00.10, HTSUS, treatment could be granted.

In HRL 960464 dated December 26, 2001, the importer failed to submit a manufacturer’s affidavit (or other declaration) in support of a claim under subheading 9801.00.10, HTSUS, and preferential treatment was denied upon entry. In supporting the port’s determination, it was noted that: “Although the production of such documentation may be waived, the port director must first be reasonably satisfied that the articles were imported in circumstances meeting the requirements of subheading 9801.00.10, HTSUS, which is not the case here.” Therefore, the importer’s claim for duty-free treatment was denied. See also, HRL 560807 dated May 6, 1998 (importer asserted that evidence, other than a manufacturer’s affidavit, should be accepted to show that an article was made in the United States; CBP noted that “sufficient documentation” must be submitted to establish that imported articles are in fact of U.S. origin, however, no such information was presented in this particular case).

Applying the forgoing to the instant case, it remains our opinion that it is within the port director’s discretion to determine whether sufficient evidence has been provided to substantiate an importer’s claim under subheading 9801.00.10, HTSUS, in instances where necessary documentation is provided in a form other than what is normally required under 19 CFR 10.1. Accordingly, we find that a NAFTA Certificate of Origin, as opposed to a manufacturer’s affidavit, may be accepted as proof of origin for purposes of obtaining preferential treatment under subheading 9801.00.10, HTSUS, provided the port director is reasonably satisfied that the certificate substantiates the importer’s claim that certain goods are products of the United States. In situations where the port director is reasonably satisfied of the forgoing, we note that the other criteria of subheading 9801.00.10, HTSUS, must also be satisfied before preferential treatment is granted.

HOLDING:

Based upon the information before us, it is our opinion that a NAFTA Certificate of Origin, as opposed to a manufacturer’s affidavit, may be accepted as proof of origin for purposes of obtaining preferential treatment under subheading 9801.00.10, HTSUS, provided the port director is reasonably satisfied that the certificate substantiates the importer’s claim for preferential treatment under subheading 9801.00.10, HTSUS. In situations where the port director is reasonably satisfied of the forgoing, we note that the other criteria of subheading 9801.00.10, HTSUS, must also be satisfied before preferential treatment is granted.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.

Sincerely,

Myles B. Harmon, Director

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